Hi Blog. Second in this series of arbitrary bureaucratic rule in Japan: Debito.org Reader J sends me this post about the tribulations he’s had getting his Permanent Residency, and how Immigration Bureau bureaucrats feel they are within their mandate to ignore the letter of the law. According to J, even when you show them their guidelines are unlawful under the law, they have replied, “That’s just a law.” Which of course calls into question the rule of law in Japan, and bureaucrats’ attitudes towards being constrained by legislation meant to preserve the consent of the governed in a democracy. Arudou Debito

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November 8, 2011

Hi Debito, how’s it going? Who do you think is a good lawyer that has appealed a PR declination successfully before?

I think I have an undeniable open-and-shut appeal case in which the courts will most likely overturn an immigration officer’s illegal decline of Permanent Residency.

(Perhaps you remember, I had a car accident once 5 years ago in which I committed a crime – I received probation, since thankfully no people were hurt, only cars damaged.)

What makes [my] PR decline obviously “illegal” is that the following Law was ignored:(1) 素行が善良であること (2) 独立の生計を営むに足りる資産又は技能を有すること (3) その者の永住が日本国の利益に合すると認められること （注）日本人，永住者又は特別永住者の配偶者又は子の場合は，(1)及び(2)に適合することを要しない。#1 reason for declination is: having committed a crime. #2 reason for declination is: being financially too poor. #3 reason for declination is: not being a profit to Japan.The Law then nicely goes on to state that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens.

So, this means that if an immigration officer wants to legally decline Permanent Residency to a spouse of a Japanese citizen, he is REQUIRED to claim reason #3.

So again, who do you think is a good lawyer? I’m willing to pay his standard price, plus, a 500,000 yen bonus upon successfully overturning this illegal refusal of PR. Please let me know if you have any good ideas of who I should call. Sincerely, J

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November 8, 2011

Hi Debito. Turns out I don’t need a lawyer after all.

Whoever wrote the original Law saying that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens, their goal was clear: to let foreigners married to Japanese citizens become Permanent Residents, regardless of whether they were convicted criminals, or poor, or both.

But then, some bureaucrats within immigration with the opposite goal (limiting PRs) decided to write some new “Guidelines” which say the exact opposite.

These new “Guidelines” (which the Unelected bureaucrats proclaim “trumps” the Laws written by Elected Lawmakers) say that reason #3 includes convictions.

Cute. So since the door was opened “too wide” by the original Law, just type up some “Guidelines” that moves the “crime disqualification” from reason #1 into reason #3, et voila!

Now, if I go to court, the court can simply say, “Well, according to this Heisei 15/16 update/addition to the immigration Guidelines (penned by Unelected bureaucrats) you lose. Boom.”

But, your honor, “reason #1″ means “didn’t follow the law” (and “reason #1″ doesn’t apply to spouses of Japanese citizens) so how can “didn’t follow the law” be added to “reason #3″?

Guidelines written by Unelected bureaucrats are REVERSING and TRUMPING the Laws written by Elected Lawmakers, plus let’s remember that these Guidelines are usually secret.

For example: the LAW says that Passports only have to be shown to immigration officers, but new GUIDELINES say that every Gaikokujin (for example: your single foreigner cousin, living in your house, with a valid visa, NOT RECEIVING KODOMO TEATE [child allowance]) must come allow the Kodomo Teate Section to copy his Passport, or else the couple with kids are penalized.

Perhaps your single foreigner cousin, living in your house, with a valid visa, NOT RECEIVING KODOMO TEATE, refuses to let some “Kodomo Teate city worker” to copy his Passport?

According to the new Kodomo Teate Guidelines, if ANY Gaikokujin living in the house refuses to hand over his Passport, the Kodomo Teate will be taken away from the couple with kids.

So now the couple with children must force any Gaikokujin roommates they are living with to submit to this unlawful new guideline, or else the couple with children will be penalized.

The couple with children do NOT have to ask their Japanese roommates to submit anything, this unlawful new guideline doesn’t dare ask JAPANESE citizens to show their passport.

The reasoning for this guideline is “foreigners spend Kodomo Teate money vacationing in Thailand, but Japanese citizens would never do that, so we don’t check Japanese passports.”

Try asking the Kodomo Teate section for a copy of this new Guideline, they won’t give a copy of it, they won’t even show it to you, because, “Our Guidelines are secret.” Seriously. (!)

Laws made by the Kokkaigin say that we DON’T have to show our Passport except to immigration officers and when getting our ARC, but: new Guidelines say Kodomo Teate as well.

If you are a Japanese person receiving Kodomo Teate, with a non-Japanese living in your house, the new Guidelines say ALL Gaikokujin MUST come show their Passport – or else.

Do the Elected Lawmakers know that their will has been reversed and trumped? Do the Elected Lawmakers know that these new guidelines are in direct conflict with national Laws?

My conversation recently with an immigration official summed it up perfectly, when I read him the Law stating that reason #1 can’t be used against me, he said, “That’s just a law!”

I couldn’t believe it, this officer actually said, in front of his co-workers, “それはただの法律だけ！” His tone was perfectly clear, “WE make the decisions around here, not laws.”

So, nevermind my request for a lawyer, I can see that since the bureaucrats within immigration have craftily moved crime from reason #1 down to reason #3, I can’t get PR, oh well.

Currently in Japan (in my opinion the best country relative to others) a sad state admittedly exists where Guidelines trump Laws: Unelected bureaucrats trump elected lawmakers.

Thanks anyway for the good work you do. Sincerely, J

PS – I wonder how the majority of Japanese citizens would feel about a Law that says, “From now, only Elected Lawmakers (and publicly-voted initiatives) can create Laws. And any Guidelines written by unelected bureaucrats CANNOT conflict with those Laws. Plus all Guidelines written by unelected bureaucrats must be Public: no Secret Guidelines.”

31 Responses to “J on how Japan’s Immigration Bureau uses unlegislated bureaucratic guidelines to trump the letter of the law, in this case re obtaining Permanent Residency”

From now, only Elected Lawmakers (and publicly-voted initiatives) can create Laws.
There is such a provision in the Constitution, actually: “Article 41. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.”
J, I think you should consult a lawyer about the prospects of your case in court before giving up.

“From now, only Elected Lawmakers (and publicly-voted initiatives) can create Laws.
And any Guidelines written by unelected bureaucrats CANNOT conflict with those Laws.
Plus all Guidelines written by unelected bureaucrats must be Public: no Secret Guidelines.”

That would be unwise.

Only the legislature cam make statute laws.

However, Japan needs to have the ability to have administrative laws (e.g. ordinances or regulations) because its legislature could not possibly be able to issue statutes with the specificity necessary for all situations subject to government control.

Moreover, the Japanese judiciary (if it is to be meaningful) must have the ability to issue judicial decisions that have precedential value (jurisprudential law) or courts would be easily overwhelemed and thus completely meaningless.

I agree that all forms of law must be public and never secret. Secret laws erode democracy.

But, to say that “any Guidelines written by unelected bureaucrats CANNOT conflict with those Laws” is to subvert democracy.

Among the bureaucrats who are never elected are the members of this organisation [ http://www.courts.go.jp/ ] and they would be unable to ever check or restrain the power of the executive function.

Court guidelines merit respect and obedience, even by the Diet, in a democracy.

An untrammeled Diet would place Japan far outside modern democratic norms.

@Charuzu Right on But the problem being described here is City Hall Guidelines, not Judiciary Decisions.
If you really want to talk about judges, nope: judges are empowered to INTERPRET laws, NOT to make laws.

As Oscar_6 correctly pointed out, Japan’s constitution wisely states: Only the Diet can make laws. Period.

@Everybody, here’s the more polished final version of my opinion, which I would prefer be posted:

Hi Debito

How’s it going?

Who do you think is a good lawyer that has appealed a PR declination successfully before?
I think I have an undeniable open-and-shut appeal case in which the courts will most likely overturn an immigration officer’s illegal decline of Permanent Residency.
(Perhaps you remember, I had a car accident once 5 years ago in which I committed a crime – I received probation, since thankfully no people were hurt, only cars damaged.)

What makes this PR decline obviously “illegal” is that the following Law was ignored:
(1) 素行が善良であること
(2) 独立の生計を営むに足りる資産又は技能を有すること
(3) その者の永住が日本国の利益に合すると認められること
（注）日本人，永住者又は特別永住者の配偶者又は子の場合は，(1)及び(2)に適合することを要しない。
#1 reason for declination is: having committed a crime.
#2 reason for declination is: being financially too poor.
#3 reason for declination is: not being a profit to Japan.
The Law then nicely goes on to state that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens.

So, this means that if an immigration officer wants to legally decline Permanent Residency to a spouse of a Japanese citizen, he is REQUIRED to claim reason #3.
My case is: I’m married to a Japanese citizen (7 years) and yet the immigration officer declined my Permanent Residence using reason #1, “previous conviction”.

So again, who do you think is a good lawyer? I’m willing to pay his standard price, plus, a 500,000 yen bonus upon successfully overturning this illegal refusal of PR.
Please let me know if you have any good ideas of who I should call.

Sincerely,

J

Hi Debito

Turns out I don’t need a lawyer after all, never-mind.

Whoever wrote the original Law saying that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens, their goal was clear:
to allow foreigners married to Japanese citizens to become Permanent Residents, regardless of whether they were convicted criminals or poor or both.

But then, some bureaucrats within immigration with the opposite goal (limiting PRs) decided to write some new “Guidelines” which say the exact opposite. (!)
These new “Guidelines” (which the Unelected bureaucrats proclaim “trumps” the Laws written by Elected Lawmakers) say that convictions is in reason #3.

Cute. So since the door was opened “too wide” by the original Law, the bureaucrats typed up some “Guidelines” moving the “crime disqualification” from reason #1 into reason #3.
Now, if I go to court, the court can simply say, “Well, according to this Heisei 15/16 update/addition to the immigration Guidelines (penned by Unelected bureaucrats) you lose. Boom.”
But, your honor, “reason #1″ means “didn’t follow the law” (and “reason #1″ doesn’t apply to spouses of Japanese citizens) so how can “didn’t follow the law” also be in “reason #3″?

Do the Elected Lawmakers know that their will has been reversed and trumped? Do the Elected Lawmakers know that these new guidelines are in direct conflict with national Laws?
My recent conversation with an immigration official summed it up perfectly, when I read him the Law that reason #1 can’t be used against spouses of Js, he said, “That’s just a law!”
I couldn’t believe it, this officer said, in front of his co-workers, “それはただの法律だけ！” His tone was perfectly clear, “Laws don’t matter, we OFFICERS make the decisions here!”

So, nevermind my request for a lawyer, I can see that since the bureaucrats within immigration have craftily moved crime from reason #1 down to reason #3, I can’t get PR, oh well.
Currently in Japan (in my opinion the best country relative to others) a sad state admittedly exists where Guidelines trump Laws: Unelected bureaucrats trump Elected Lawmakers.

Thanks anyway for the good work you do.

Sincerely,

J

P.S.
This un-checked abuse of “authority” of the unelected bureaucrats is going even further: now anyone who receives Kodomo Teate who looks foreign must show their Passport, or else.
The Roudoushou is writting guidelines (http://www.mhlw.go.jp/bunya/kodomo/osirase/100402-1.html) deputizing city hall workers in the Kodomo Teate section into Immigration Officials.
The Kodomo Teate database doesn’t even know who is a citizen or not, so they are bullying “people who look like non-citizens” (people like Debito) into submitting to Passport checks.
Walk up to the Kodomo Teate section with a “wrong color” face like yours Debito, and you are going to have to PROVE to them that you are not guilty of being an illegal over-stayer.
The Law doesn’t allow their computers to access the ARC information contained in the databases of the ARC section, so the KTS are using their eyes and ears to choose who to bully.
Basically, “We don’t have a warrant or probable cause, but your face looks illegal, so let us invade your privacy now, or we will hold on the money that is lawfully yours. Your choice pal.”
What we really need in Japan is a Law passed stating, “Only Elected Lawmakers (and publicly-voted initiatives) can create Laws: subsequent ‘Guidelines’ can NOT conflict with Laws.”

“But, to say that “any Guidelines written by unelected bureaucrats CANNOT conflict with those Laws” is to subvert democracy.”

This is nonsense. In a democracy, executive branch regulations that directly conflict with laws established by the legislature are subject to appeal and revision.

“Moreover, the Japanese judiciary (if it is to be meaningful) must have the ability to issue judicial decisions that have precedential value (jurisprudential law) or courts would be easily overwhelemed and thus completely meaningless.”

In Japan, precedent is non-binding so individual judicial decisions have very little importance in the overall scheme – so they are ineffectual. There often is also no mechanism to enforce judicial decisions, which makes them doubly useless.

Japan has copied the shape and feel of western justice, but the content is missing.

Perhaps a slight tangent, but the police do the exact same thing: make up rules as they see fit regardless of what laws are applicable. The whole “stop you for no reason” thing for example.

I don’t think formal laws really matter in Japan, unless it’s *you* that’s breaking them. If you break the law, well, “the law is the law, no exceptions!”, but otherwise it’s “this is Japan!” It’s hypocrisy to an extreme. For a society that prides itself so much on order and following strict rules, it blows my mind that they just blatantly break their own laws whenever it suits them.

Japan is a civil law country, unlike US and UK, so you should be careful using US-centric comparisons (precedence of the law, “case law”, etc…). The proper codification of offenses and punishments is of paramount importance in civil law jurisdictions and the judges have much less freedom to interpret and create the law (in theory) than in common law countries.
The existence of secret laws and regulations is however very problematic. In a democratic country, each law and regulation should be made public.

In a direct democracy (a real democracy) each law is put on the ballot by petition and voted on by the people.

In a republic (a fake democracy) the people can not vote on each law*, the people can merely vote for “law makers”.

* = Yes, in the U.S. the people are occasionally allowed to think they have direct law-voting-ability, but in the end it turns out that the legislators’ will trumps the will of the people. For example, the majority of Californians voted to allow adults in California holding a Medical MJ Prescription to smoke and grow their medicine, but in the end: thanks to an ironic push from President Clinton, the Supreme Court ruled that the old law created by the legislators TRUMPS the new law created by the people. This Supreme Court ruling was a big reminder to intelligent people that the U.S. is truly a republic, where the people’s will (evidenced by the 1996 MMJ ballot results) was ignored. Thus, thousands of prescription holding MMJ growing California residents since 1996 have had their property stolen by the DEA, even though the publicly-approved-law (Health and Safety Code 11362.5) told them that they were following the law.

Still, even though the republic system as HIGHLY flawed, as seen above, at least in a republic the people have the option to vote-OUT any old legislators who don’t uphold the will of the people, and to vote-IN new legislators who promise (heh-heh, promise) to uphold the will of the people.

The point being discussed in the opinion piece above is: guidelines being written by UNELECTED Roudoushou which are OPPOSITE of laws that were written by ELECTED legislators.

For example, the legislators decided that gaikokujin don’t have to show their Passports to anyone except for: 1. At the border to customs officers, 2. When applying for a new visa and when applying for the ARC 3. Within the border to customs officers who have probable cause to believe that a particular person doesn’t have a visa 4. Within the border to police officers who have probable cause to believe that a particular person doesn’t have a visa. (This is all encapsulated within the phrase “when necessary in their line of duty of enforcing laws.”)

Thus, the unelected police’s semi-successful attempt to write “guidelines” which fooled hotel owners and staff into thinking that they were “required by law” to demand that “anyone who looks non-Japanese” hand over their passport to be copied or be DENIED a hotel room: was patently against the law.

Thus, the unelected Roudoushou’s currently-100%-successful attempt to write “guidelines” which fooled Kodomo Teate Section workers into thinking that they were “required by law” to demand that “anyone who looks non-Japanese” hand over their passport to be copied or be DENIED their child allowance payment: was patently against the law.

I’m not arguing about whether or not unelected judges’ rulings should be considered to be laws, or whether unelected judges’ rulings should trump legislator created laws, or blah blah blah.

(The fact is I would prefer that we have a REAL democracy, where THE PEOPLE vote to choose the laws, and THE PEOPLE vote to choose the PEACE OFFICERS, and THE PEOPLE vote to choose the JURY MEMBERS. The PEACE OFFICERS simply arrest people when there is evidence that there is a victim whose body or property has been hurt by an someone, and THE JURIES simply decide whether or not the accused actually did hurt someone’s body or property, and if so then THE JURIES look at the laws (voted on by the people) to see what penalties THE PEOPLE have chosen to assign to each kind of injury.)

But all of that is irrelevant to the main point being made above. The main point being made above is that the legislators wrote that “crime is NOT a legal reason to deny PR”, but unelected Immigration officers wrote that “crime IS a legal reason to deny PR.” And the legislators wrote that “Gaikokujin DON’T have to show passports to anyone but customs officers and police officers when necessary in their line of duty of enforcing laws”, but unelected Roudoushou officers wrote that “people who appear to the eyes of Kodomo Teate Section workers to be gaikokujin DO have to show their passports, upon threat of large financial penalty.”

I’m not talking about changing the Japanese system of law creation, so let’s not complicate the issue here.
I’m simply saying that the Japanese bureaucrats are NOT FOLLOWING the laws created by the Japanese Legislators.

It’s pretty obvious that by “unelected officials who shouldn’t make laws” J meant officials from executive branch, not judicial. And “case law” is the product of interpretation of statute law by judges. So I really can’t see the point of you arguing with J when you in fact agree with him

I believe the individual who wrote this has forgotten a major guideline as far as pr goes:

Honestly, you committed a a crime in a country that brands people for life; in the US, “time served” and “probation” mean a person has a new lease on life: this country is draconian in it’s policies, especially where us foreigners are concerned more so.I’d say be glad to still be here, and count your blessings.

J. Sorry to hear your PR request was denied. However, I think you are misinterpreting the relevant law. It is not that you are a “profit” to Japan but that your permanent residency is in Japan’s interest. Section 1 does not deal with whether you are breaking the law but rather that you are of good conduct and obey the law.

What you are ignoring this section of part 3:
罰金刑や懲役刑などを受けていないこと。

Which says you have not been sentenced to a fine or imprisonment and you pay your taxes.

That would seem to very clearly disqualify you from PR and is, in fact, not some arbitrary hurdle the immigration folks are throwing in your way.

El-Guapo, how can I make this clearer: as you yourself wrote, “Section 1 says you must be of good conduct and obey the law.”

There you go. Section 1 says you must obey the law.

How can you say that “Section 1 does not deal with weather you are breaking the law”?
You are contradicting your self there. Section one says you must obey the law. It’s simple.

And what you are ignoring is the part that says clearly “Section 1 DOESN’T APPLY to spouses of Japanese citizens.” （注(ちゅう)）日本人，永住者又は特別永住者の配偶者又は子の場合は，(1)及びに適合することを要しない。

Just as the 10 year rule doesn’t apply to spouses of Japanese citizens. You see, spouses of Japanese citizens are allowed to get PR even IF they don’t meet criteria 1, and even if they don’t meet criteria 2. Amazing, huh? Laws are interesting. I know this all sounds amazingly lenient, but the LEGISLATORS decided that it is IN THE BEST INTERESTS of Japan to have foreign-born people (many of them being breadwinners helping to support Japanese children) to be given PR: EVEN IF THEY HAVE CONVICTION, because without those breadwinners the Japanese state would be slightly more likely to have to support a higher number of single spouses and poor children each year and that would cost the state slightly more money.

Now that you realize what the legislators wrote, go ask them WHY they decided to write that “Section 1 (about obeying laws) and Section 2 (about having money) and the other section about having 10 years in Japan: ALL do NOT APPLY to spouses of Japanese citizens.” and if you really don’t like this leniency to spouses of Japanese citizens then vote those legislators out out and vote in some new legislators who will write some new laws. Meanwhile, the laws as they stand are amazingly lenient to spouses of Japanese citizens, and the Roudoushou bureaucrats simply have to suck it up and do exactly what the legislators tell them to, right?

In summary, take note of the final situation: The Legislators wrote that Section 1 (must obey laws) and Section 2 (must have money) don’t apply to spouses of Japanese citizens, the only section that applies to spouses of Japanese citizens is Section 3 (be a profit to Japan), so the Roudoushou folks who wanted to GO AGAINST the legislators’ leniency decided sometime in Heisei 15/16 to take Section 1 (must obey laws) and stick into Section 3 using a little ア、イ、ウ、エ addition technique. Crafty.

The resulting contradiction is obvious: “must obey the law” still sits up in Section 1 which is NOT applicable to spouses of Japanese citizens, yet now you’ve got “must obey the law” contradictorily ALSO sitting in Section 3 which IS applicable to spouses of Japanese citizens. Which is true?

You can’t have a legislated law that says “NOT applicable to spouses of Japanese citizens” and then simply allow some Roudoushou people to write up a sub-guideline that says, “Nah, we don’t like that law, it’s too lenient, from now on that requirement IS applicable to spouses of Japanese citizens. Ha-ha! High-Five fellow Roudoushou officers, we really over-ruled those silly legislators who the people chose. What the legislators write are merely words which we can contradict. WE make the decisions around here! WE write the guidelines http://www.moj.go.jp/nyuukokukanri/kouhou/nyukan_nyukan50.html , even if the guidelines obviously CONTRADICT the original laws http://www.moj.go.jp/ONLINE/IMMIGRATION/16-4.html .

Now, what that says is that by law the MoJ gets to set the requirements for PR.

Additionally it doesn’t mention criminal behavior (the part you seem to think being married to a Japanese citizen exempts you from) just that you be a good boy and have enough assets or skills to support yourself (which are both exempted if you are married to a Japanese citizen – ２ 前項の申請があつた場合には、法務大臣は、その者が次の各号に適合し、かつ、その者の永住が日本国の利益に合すると認めたときに限り、これを許可することができる。ただし、その者が日本人、永住許可を受けている者又は特別永住者の配偶者又は子である場合においては、次の各号に適合することを要しない。).

一 素行が善良であること。
二 独立の生計を営むに足りる資産又は技能を有すること。

But, ultimately, it all comes down to BY LAW the MoJ gets to set it’s own guidelines as long as they don’t conflict with the law. And they did, and I happen to think they’re pretty straight forward.

In other words, you are going to have to live with the consequences of your bad behavior. Just be happy you didn’t kill anyone when you got behind the wheel, from what I’ve heard Japanese prisons aren’t a lot of fun, so in that respect the penalty you’re having to pay is a very light one.

Hi El-Guapo, unfortunately you seem to be not understanding the very words you are posting. Let me help you out.

The Law doesn’t mention criminal behavior just that you be a good boy and have enough assets or skills to support yourself (which are both exempted if you are married to a Japanese citizen – ２ 前項(ぜんこう)の申請(しんせい)があつた場合(ばあい)には、法務大臣(ほうむだいじん)は、その者(もの)が次(つぎ)の各(かく)号(ごう)に適合(てきごう)し、かつ、その者(もの)の永住(えいじゅう)が日本(にっぽん)国(こく)の利益(りえき)に合(ごう)すると認(みと)めたときに限(かぎ)り、これを許可(きょか)することができる。ただし、その者(もの)が日本人(にっぽんじん)、永住(えいじゅう)許可(きょか)を受(う)けている者(もの)又(また)は特別(とくべつ)永住(えいじゅう)者(しゃ)の配偶(はいぐう)者(しゃ)又(また)は子(こ)である場合(ばあい)においては、次(つぎ)の各(かく)号(ごう)に適合(てきごう)することを要(よう)しない。).

Thus, ultimately, it all comes down is that the newly added guidelines literally conflict with the law, because the law states that spouses of Japanese citizens DON’T have to “be a good boy” to get PR, yet the guidelines added later say spouses of Japanese citizens DO have to “be a good boy.” The contradiction here between law and guideline is pretty straight forward.

What makes [my] PR decline obviously “illegal” is that the following Law was ignored:
(1) 素行が善良であること
(2) 独立の生計を営むに足りる資産又は技能を有すること
(3) その者の永住が日本国の利益に合すると認められること
（注）日本人，永住者又は特別永住者の配偶者又は子の場合は，(1)及び(2)に適合することを要しない。
#1 reason for declination is: having committed a crime.
#2 reason for declination is: being financially too poor.
#3 reason for declination is: not being a profit to Japan.
The Law then nicely goes on to state that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens.

Ok, to start with this is not the law. This is the immigration guidelines where you did not include the addendums. The law says:

Now let’s deal specifically with this part of your previous statement:

“trumps” the Laws written by Elected Lawmakers

Could you please tell me what part of the guidelines listed is in any way in conflict with the law? Because I’m not seeing it. And to keep me from pulling my hair out remember, that which is not explicitly forbidden is not implicitly allowed…

Finally let’s deal with this little bit of dishonesty:

But now, check out this crafty Heisei 15/16 “update” to the immigration Guidelines (added by unelected immigration bureaucrats) look at the ア、イ、ウ、オ additions:

In other words, there is no contradiction, only cognitive dissonance on your part and an attempt to find someone to blame for the consequences of your own actions.

– El Guapo, speaking in the same vein, I noticed that among your ever-changing IP addresses (which indicate your server is in Berlin), thanks to a history of nasty commenting here (this time was no exception; I just removed some of the barbs), that one of them indicates you have a history of spamming. Counterarguments are welcome here but you are not. Goodbye.

A dishonest reply would be, “罰金刑や懲役刑などを受けていないこと doesn’t conflict with 素行が善良であることは適合することを要しない。”

An honest reply would be, “Well, yeah, those 2 sentences conflict, but who cares, I prefer the new guidelines.”
“The truth is I simply disagree with the lenient Legislators who wrote 素行が善良であることは適合することを要しない。”
“I think the Law 素行が善良であることは適合することを要しない SHOULD be trumped by the guideline 罰金刑や懲役刑などを受けていないこと。”

Shame that El-Guapo is a Spammer: he was right, though, initially. The fact that a crime or paying a fine is clearly listed as things that will not weigh in one’s favor here for PR, I cannot see an argument going further: read the other blog where someone who committed no crime had her house inspected; listen to people from other parts of Asia who are constantly denied….this nation cuts no slack….

By the way, for those claiming “there is no right to appeal”: wrong. Stop it. The “no” letter came stapled with an explanation that applicants denied have the right to appeal: specifically, the appeal must be made within 6 months of having received the “no” letter.

So, for those who are INCORRECTLY posting on the internet “there is no right to appeal”, I wonder where your confidence in that myth came from, and why you felt it was OK to post with such confidence about things which you don’t know.

So, back to real life experience, since immigration notified me (as they were required to, by law) that I had the right to appeal within 6 months, I did just that. I sent my appeal to the head of immigration within 4 months. Waited a month, no answer. Sent another letter asking for at least confirmation that he received my appeal within time. Waited 3 weeks, no answer.

Eventually I called and his secretary informed me that yes, they received my appeal in time, but they didn’t reply because: they don’t handle appeals. What? Yep, “You had to appeal within 6 months TO THE COURTS, not to the head of immigration, sorry the stapled explanation didn’t explain that minor detail. And we didn’t feel that it was necessary for us to reply to your appeal to let you know that we weren’t doing anything with your appeal. Good luck submitting to the court in time. You’ve got one week left.”

That’s when I contacted Debito looking for a good lawyer with a successful appeal under his belt.

But then, I noticed that the 日本人の配偶者である場合においては、素行が善良であることは適合することを要しない Law was essentially being usurped by the Heisei 15/16 罰金刑や懲役刑などを受けていないこと guideline addition.

Thus, I decided that probably the judges would side with the MoJ’s strict new guidelines, instead of the Legislators’ Lenient Law, and that a last minute attempt by me to hire a lawyer would most likely be a waste of money and energy.

Still, I told Debito he could share this story with his readers, with the hope that someday SOMEBODY in a similar position (married to a Japanese citizen yet denied PR unlawfully contrary to the “日本人の配偶者である場合においては、素行が善良であることは適合することを要しない Law”) will eventually decide to appeal their unlawful denial: so that we can all see what the judges will do when the “日本人の配偶者である場合においては、素行が善良であることは適合することを要しない Law” is placed squarely on their desk.

Yeah, notice I keep repeatedly pasting the “日本人の配偶者である場合においては、素行が善良であることは適合することを要しない Law” again and again, because some people keep repeatedly ignoring it.

Go ahead, remind me once again about the lower “罰金刑や懲役刑などを受けていないこと guideline”, and I will remind you once again about the higher “日本人の配偶者である場合においては、素行が善良であることは適合することを要しない Law”.

– So essentially, there is no right to appeal. You can (by law I assume, ahem) appeal (to the courts, at your expense, but we at Immigration won’t facilitate that process by making clear that that IS the process) within six months, yes. Good luck getting that overturned anytime soon, if at all, as J courts rarely rule against the GOJ (and I can say that with confidence). Might as well just apply for PR again within a year or two and hope you get somebody different looking at your application.

Anyway, thanks for sharing your story, J, and I hope somebody does appeal (or has done) and tells us how it went.

How clear is it that “善良な素行” refers to not having a criminal record? You equate the two, but to me, not having studied Japanese law, this is not at all self-evident. I believe this is what the disagreement, or perhaps misunderstanding, between you and El-Guapo stems from. It seems to me that the law itself is vague: that spouses of Japanese citizens are excused from the requirement to be of “good conduct”, doesn’t necessarily mean conduct can’t play any role at all. One’s conduct isn’t required to be good – it may, perhaps, be “less than optimal” or “dubious” – but this does not imply that it may be “bad”. The standard of what “good”, “so-so”, and “bad” conduct are, is, of course, completely left to the discretion of the Minister.

To me, as a layman, the law itself is vague and perhaps even contradictory. Surely giving someone of bad conduct the right of permanent residence is usually not profitable for a society. Doesn’t whether someone is a profitable addition to a society or not almost completely depend on their conduct?

This is not to say I believe you are of bad conduct; I am, of course, not in a position to be able to judge.

Immigration Control and Refugee Recognition Act
Cabinet Order No. 319 of October 4, 1951
Article 22.2
“The following items do NOT have to be conformed to in cases of the spouse and children of Japanese nationals, of residents with permanent residence status or of special permanent residents.
(i) The alien’s behavior and conduct must be good.
(ii) The alien must have sufficient assets or skills to make an independent living.http://www.japaneselawtranslation.go.jp/law/detail_main?vm=&id=173

Can the Ministry of Justice deny PR to spouses of Japanese nationals based on behavior and conduct?
No, Immigration Control and Refugee Recognition Act Article 22-2 exempts spouses of Japanese nationals from that factor.
To deny PR to spouses of Japanese nationals based on that factor is unlawful according to Article 22-2.

Can the Ministry of Justice deny PR to spouses of Japanese nationals based on assets or skills?
No, Immigration Control and Refugee Recognition Act Article 22-2 exempts spouses of Japanese nationals from that factor.
To deny PR to spouses of Japanese nationals based on that factor is unlawful according to Article 22-2.

Can the Ministry of Justice deny PR to spouses of Japanese nationals based on “not being in accordance with the interests of Japan”?
Yes, Immigration Control and Refugee Recognition Act Article 22-2 allows that reason of denial for spouses of Japanese nationals.
To deny PR to spouses of Japanese nationals based on that reason is lawful according to Article 22-2.

The Ministry of Justice admittedly denied this spouse of a Japanese national PR based on behavior and conduct.
The Ministry of Justice SHOULD have denied this spouse of a Japanese national PR based on “the interests of Japan.”

The legislators did NOT want behavior and conduct to be a valid reason for the Ministry of Justice to deny PR to spouses of Japanese nationals, which is why the legislators specifically wrote, “The following items do NOT have to be conformed to.”

If the legislators wanted bad behavior such as committing crimes to be a valid reason for denying spouses of Japanese nationals, the legislators would NOT have written that spouses of Japanese do not have to have good behavior and conduct.

The Ministry of Justice’s Heisei 15/16 guideline additions added the factor of never having committed a crime to ALL APPLICANTS (including even formerly exempt spouses of Japanese nationals) and THAT is contrary to Article 22-2.

Immigration Control and Refugee Recognition Act Article 22-2 makes it clear that applicants who are NOT married to Japanese nationals need assets, skills, good behavior and conduct: and applicants who ARE married to Japanese nationals do NOT need those factors.

If you don’t like the lenient exemption that the legislators enacted, you must elect new legislators who will erase that exemption. Meanwhile, as the law stands, any conflicting guidelines are patently unlawful.

Perhaps you agree with these new strict guidelines, but the fact remains they are unlawful.
Some guidelines written by bureaucrats happen to be contrary to laws written by legislators.
Will the courts rule against the legislators or against the bureaucrats? Only time will tell.

There may be repetition in the discussion, but I would like to point out that the point I brought up above was not addressed in J’s above reply.

J,

I completely understood your argument when I submitted my last comment. I understand that, in your case, the requirement that ‘The alien’s behavior and conduct must be good.’ does not hold. It does not, however, logically follow from this that ‘The legislators did NOT want behavior and conduct to be a valid reason for the Ministry of Justice to deny PR to spouses of Japanese nationals’. That one’s conduct is not required to reach the standard of ‘good conduct’ does simply not entail that any standard of conduct at all will do.

Secondly, a point I did not bring up in my last comment. I realise now that this may actually be what El-Guapo tried to point out, but I think it can be put more clearly. I also realise now that this point is much more important than my point above – it may even make my point above irrelevant. That is, what does it mean that the two requirements stated in the law are not necessary to be fulfilled when the applicant is the spouse of a Japanese national? Note carefully how the law states that the two requirements, including the good conduct requirement, are not strictly requirements that an alien needs to fulfill to get PR. They are requirements that an alien needs to fulfill for the Minister to be allowed to give the alien PR. Note: ‘[…]法務大臣は、その者が次の各号に適合し[…]たときに限り、これ[i.e. PR]を許可することができる’. In other words, when the applicant is not the spouse of a Japanese national etc., the Minister may give the applicant PR ONLY IF the applicant is of good conduct etc. That is what it literally says here. The two requirements, including the good conduct requirement, are explicitly stated to be limitations on the authority of the Minister. What does this mean in case the applicant is the spouse of a Japanese national, i.e. your case? It does not oblige the Minister to anything at all. It actually only extends the discretionary authority of the Minister. The spouse-clause only entails that the Minister may give you PR (法務大臣は[…]許可することができる) EVEN IF the good conduct requirement etc. is not fulfilled. The literal text does not in any way imply that ‘non-good conduct’ may not be used as a reason to deny PR in your case; it only states that in your case, the Minister has the discretionary authority to give you PR EVEN IF he deems your conduct to be ‘non-good conduct’, whereas the Minister would not have the authority to give someone of ‘non-good conduct’ PR if they were not married to a Japanese national etc.

Let me, in closing, make clear that none of this means I agree or disagree with any law or guideline.

“However, the following items do NOT have to be conformed to in cases of the spouse of Japanese nationals…”

I understand you think that legislators wrote that exemption to:
* Tell the MoJ that “the qualifications of having goodness/money MUST be used to deny PR to Non-spouses-of-Japanese-nationals.”
* Tell the MoJ that “the qualifications of having goodness/money CAN (totally at the discretion of the MoJ) be used to deny PR to Spouses-of-Japanese-nationals.”

You understand I think that legislators wrote that exemption to:
* Tell the MoJ that “the qualifications of having goodness/money CAN NOT be used to deny PR to Spouses-of-Japanese-nationals.”
* Tell the MoJ that “to deny PR to Spouses-of-Japanese-nationals, the MoJ must find SOMETHING about the applicant is not-in-the-best-interests-of-Japan OUTSIDE of the exemption of goodness/money qualifications.”

If the legislators wanted to tell the MoJ that “the qualifications of having goodness/money CAN (totally at the discretion of the MoJ) be used to deny PR to Spouses-of-Japanese-nationals” the legislators would NOT have written the exemption. The legislators would have simply left the “not-in-the-best-interests-of-Japan” factor apply to everybody, without adding the “goodness/money qualification-exemption” for “Spouses-of-Japanese-nationals.”

The legislators wrote the EXEMPTION to give Spouses-of-Japanese-nationals EXEMPTION from the goodness/money qualifications. Period.

The bureaucrats wrote the Heisei 15/16 guidelines to do an end-run around the wishes of the legislators by adding the contradictory “イ” sentence: which thus unlawfully contradicted the lawfully legislated exemption.

PS – And if next year the MoJ bureaucrats decide to write “Heisei 24 guidelines” proclaiming “法律上の要 #3(オ) 独立の生計を営むに足りる資産又は技能を有すること Legal Requirement #3(オ) The alien must have sufficient assets or skills to make an independent living” THAT TOO would unlawfully contradict the lawfully legislated exemption.

A last reply. I’m afraid we will not agree, and I respect your interpretation of the law text. Or, rather, your interpretation of the intentions of the legislator, as I now believe the law text to be relatively unambiguous – contrary to what I first thought.

For the record, the most literal translation I can come up with would be:
‘In the case of an application [for PR], the MoJ may permit [the applicant] this [i.e. PR] only if it is recognised that the following two clauses apply to the applicant and the PR of the applicant will be of benefit to Japan. However, in case the applicant is the spouse or child of a Japanese national, a person with PR, or a person with special PR, it is not necessary for the following clauses to apply [to the applicant].’
Let us, for the sake of argument, assume that the first clause indeed refers to not having a criminal record. Then, in my interpretation of this text, the MoJ is not allowed to give an applicant with a criminal record PR if the applicant is not married to or the child of a Japanese national etc., because the conditions on ‘許可することができる’ are not met. Even if this applicant would be of benefit to Japan, for example due to his or her academic or cultural merits, the MoJ cannot give this applicant PR. If the applicant having a criminal record is married to or the child of a Japanese national, however, the MoJ can (許可することができる, not 許可する or 許可しなければならない, nor その者の永住が許可される) give him or her PR. To me, this makes sense: if the MoJ believes that the Japanese national etc. in question depends on the applicant for their livelihood or personal happiness etc., and, crucially, that this outweighs the potential risks of giving someone with a criminal record PR, he may decide that it is of net benefit to Japan to give the applicant PR after all, whereas the MoJ cannot decide in this way for the brilliant academic with a criminal record who is not married to a Japanese national etc. In other words, human relations are given more weight than other factors – but it all depends on the judgement of the MoJ. And it so happens that all MoJs since H.15/16 have chosen to, by default, not decide in such a way.

It is a matter of modality: can the Minister or must the Minister? The literal text says ‘can'; it is, however, not up to me to decide whether this is reasonable or just, or whether it is probable that this is the intention of the legislator. I’ll leave it up to you and other readers to decide whether my understanding of the literal Japanese and the intentions behind the text are accurate…

OK, my final post on this issue: Rudy, I respect your rational and polite demeanor.

I am surprised that in your 3 comments here you STILL are incorrectly thinking that perhaps 素行が善良であること(being of good conduct) doesn’t include 法律を遵守(obeying the law), it’s specifically written right there on the FIRST LINE of the bureaucrats’ creative extrapolation of the law, which they call a guideline:http://www.moj.go.jp/nyuukokukanri/kouhou/nyukan_nyukan50.html

And while your translation attempt of the legislators’ law was pretty good, here is the OFFICIAL translation of Japan:

“When the application set forth in the preceding paragraph has been submitted, the Minister of Justice may grant permission only when he/she finds that the alien’s permanent residence will be in accordance with the interests of Japan.”

“However, in the cases of the spouses/children of Japanese nationals/PRs/SpecialPRs, the following items do NOT have to be conformed to: good behavior and conduct, sufficient assets or skills to make an independent living.”

Quite clear.

Now, about the word “may”, Rudy. You unconsciously translated the word “may” into “can”, which is a forgivable error because that’s what it implies in everyday speech.

But surprisingly (get ready for a big surprise here everybody, I hope you’re sitting down and ready to learn something new) in legal acts when referring to the duties of administrators in relation to the benefit of applicants: the word “may” legally means “must”.

If the word “may” were to mean “can” as you had assumed, then that would mean “the Minister of Justice CAN deny permission EVEN IF the alien’s permanent residence will be in accordance with the interests of Japan. Thus, the MoJ CAN deny ANY applicant and EVERY applicant, regardless of the what legislators wrote about requirements and requirement-exemptions.”

This obvious danger of giving absolute power to administrators to over-ride the law-conferred-benefits to applicants is why in the legal world: when referring to the duties of administrators in relation to the benefit of applicants “may” means “must”.

Thus, “the Minister of Justice MUST grant permission IF the alien’s permanent residence will be in accordance with the interests of Japan. The MoJ MUST grant PR to SOME applicants, namely: ALL applicants whose PR will be in accordance with the interests of Japan.”

The logical comparison above should be enough to make you rethink your initial unconscious assumption about the meaning of “may” in this case.

Additionally, here are some evidential sources for you to ponder:

“The term ‘may’ means ‘MUST’ or ‘SHALL.'” Am Jur. Section 72. And;

“The word ‘may’ or the like as used in statutes relating to the duty of public officers is construed as MANDATORY, and not merely permissive.” Anno: L.R.A. 162; 12 L.R.A. (NS) 340. And;

“The word ‘may’ in a statute will be construed as MUST or SHALL whenever rights of third persons or the public good requires.” Lyons v. Gram, 260 P. 220, 221 (Oct. 18, 1927). And;

“Where the provisions of a statute affect the general interest, including remedial laws, they are held to be MANDATORY rather than directory.” Faunce v. Carter, 26 Wn.2d 211, 214, 173 P.2d 526 (1946); State v. Mavrikas, 148 Wash. 651, 656, 269 Pac. 805 (1928). And;

“According to its natural and usual signification, the word ‘may’ is enabling and permissive only, and so it must be interpreted where no right or benefit to the public or of third persons, but the word is interpreted to mean ‘SHALL’ or ‘MUST’ whenever the rights or benefits of the public or of third persons depend upon the exercise of the power or performance of the duty to which it refers. Thus ‘May’ should be construed to mean ‘shall.'” Pape v. Dept. of Labor & Indus., 43 Wn.2d 736, 741, 264 P.2d 241 (1953).

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Final Executive Summary:

Japanese legislators wrote a Law in 1951:
“MoJ may (shall, must) give PR to the applicants who are in accordance with the interests of Japan.”
“MoJ may (shall, must) give PR to J-spouses and J-children EVEN WHEN they didn’t follow the laws of Japan.”
“MoJ may (shall, must) give PR to J-spouses and J-children EVEN WHEN they can’t support themselves financially.”

But MoJ bureaucrats wrote a conflicting “guideline” in 2003/2004:
“イ – MoJ may (shall, must) DENY PR to J-spouses and J-children who didn’t follow the laws of Japan.”

This is a major conflict between Law and guideline. Someone should take this to court. The end.

I’m glad I ran into this thread. Although I’m lightyears from applying for PR here, the time will come (probably in about 10 or so years, so 2022-ish). I too was in a traffic accident, in 2009. I can see that I will probably run into the same problem when I make my application. J, I’m wondering what your circumstances are, such as how long you’ve been in the country, been married to your current wife, how many children you have if any, and how long ago the accident happened. I ask because by the time I think I may put in for PR, I’ll have been married to my wife (she’s Japanese) 22 years, still (knock on wood) have two minor children, been in the country “long enough” to apply for PR, and it will have been 12 years since the accident, and the only “crime” (again, knock on wood-accidents happen), not to mention a steady retirement income for the rest of my life. Does anybody think that will have any bearing on my application? Or should I be prepared for frustration and an appeal to the court system?

Just to answer your question Mtto: I applied 5 years after the traffic accident, 15 years living in Japan, 7 years married, 3 children. MoJ told me that I should apply again in 5 years because “maybe” they will reconsider then.

Perhaps their unwritten way-of-doing-things is: “If the spouse of a J-citizen has 10 consecutive years of perfect recent record, then ‘maybe’ we will be nice enough to do what the legislators ordered us to do in 1951: grant PR to spouses of J-citizens.”

I’ll apply again in 5 years and report back here. As for yourself, you could wait 8 years to apply, or, as long as you have a 3 year spouse visa you can apply right now.

Let me repeat that: a 3 year spouse visa is the only requirement to apply, so you might as well apply now to see whether they approve you now, there is NO need to wait until you’ve lived in Japan over 10 years (the “10 years of living in Japan” requirement is only for applicants who are NOT married to J-citizens.)

And even though I wussed-out and didn’t appeal to a court, I do hope someone reading this has more courage than me and actually APPEALS the denial of PR, within 6 months, to a court.

In my case, by the time the MoJ told me that the appeal must be made to a court – not to the MoJ – there was only 1 week left, and I decided, “Hmmm, chances are high that the average Japanese lawyer won’t have the balls to even write the official appeal properly against the MoJ’s unlawful action, and chances are also high that the average Japanese judge won’t have the balls to honestly publicly proclaim that the MoJ’s guidelines are conflicting with the Legislator’s Laws, and I currently don’t feel brave enough to risk my money, time, energy, and privacy, to make the appeal.”

Hopefully someone living in Japan, a spouse of a J-citizen unlawfully denied PR, WILL have the courage to appeal to a court. Let’s find out if a Japanese judge will be honest enough to tell the truth here.

Remember, on November 15th 2011, a Japanese judge in the Fukuoka High Court honestly said to the Oita Prefectural Welfare Benefits Officials, “Hey, the 1990 Law states, ‘PRs ARE eligible for Welfare’, so you may NOT (must not) deny PRs Welfare based on your unlawful ‘citizenship-requirement’ guideline-addition.”

So, it is possible that sometime in 2012, a Japan judge will honestly say to the the Ministry of Japan Immigration Officials, “Hey, the 1951 Law states, ‘Spouses of J-citizens ARE exempt from “behavior-requirements” (and from “money-requirements”)’, so you may NOT (must not) deny Spouses of J-citizens PR based on your unlawful ‘behavior-requirement’ guideline-addition.”

OK, since there’s really nothing further for me to say on this issue, let’s let this thread remain quiet until someone steps up with some real news to report.